Religious
Symbols in
Public PlacesThe issue: What rules
should
govern the placement of religious symbols in public places?

Introduction

Like many
other perplexing
constitutional issues, the issue of what religious symbols may occupy
various
public spaces is essentially a where-to-draw-the-line question.
Only
absolutists would find objectionable a religious painting in the
National
Gallery of Art, and only absolutists would see no problem with the
placement
of a giant crucifix on top of the Capitol Building. A line will
have
to be drawn, and the differences between a constitutionally permissible
religious display that is close to the line and a constitutionally impermissible
display that is also close to the line may seem laughably small--or
even
silly. Welcome to "the-two-plastic-animals rule."

Lynch
(1984) and County
of Allegheny (1989) both concern the placement of nativity scenes
on
public property during the Christmas season. In Lynch,
the
Supreme Court uses the
three-prong Lemon test to conclude that a creche in
Pawtucket,
Rhode Island does not violate the Establishment Clause. Five
years
later, the Court uses the same test in Allegheny to conclude
that
a creche in a county building violates the Establishment Clause.
The distinguishing feature, Justices Blackmun and O'Connor suggest, is
that the Pawtucket display included secular Christmas symbols such as a
Santa Claus and--yes--two plastic animals (reindeer and
elephants).
The presence of the secular symbols made the overall effect of the
display
more a celebration of a season than an endorsement of religion. By
contrast,
Allegheny County's display featured only a creche surrounded by
poinsettias--
and no secular symbols. (The Court in Allegheny upholds the
constitutionality
of a menorah, also set on public property in Pittsburgh, in part
because
it is dwarfed by a nearby 45-foot Christmas tree, minimizing the
likelihood
that the menorah could be taken as a sign of government endorsement of
Judaism.) [See photos of the two displays involved in Allegheny
below:]

Creche found to violate Establishment Clause
in Allegheny County v. ACLU.

Menorah found NOT to violate the Establishment
Clausein Allegheny County v. ACLU.

In 1995, in Capitol
Square Review Board, the Court considered whether a free-standing
cross,
placed by the KKK in a public square across from the Ohio State Capitol
building, would violate the Establishment Clause. Concluding that
the space in question was a public forum (a space traditionally used
for,
or set aside for, expressive activity), the Court ruled that
private
placement of the cross would not constitute an endorsement of
religion.
Writing for four members of the Court, Justice Scalia insisted that the
test was not whether a reasonable person might perceive
the
cross to be an endorsement of Christianity by Ohio. Scalia said
the
real issue is whether Ohio promoted religion, and promotion is
not--he
concluded-- to be found when a private organization is allowed to use a
public forum for religious expression on the equal terms with other
organizations.

Private crosses, including Klan cross, in
front of
the Ohio statehouse. These are the crosses involved in Capitol
Square.

The Lemon Test

Government action violates the Establishment Clause unless it:
1. Has a significant secular (i.e., non-religious) purpose,
2. Does not have the primary effect of advancing or inhibiting
religion, and
3. Does not foster excessive entanglement between government and
religion. Note: Consensus over the
appropriateness of using
the Lemon test has broken down since Allegheny.
It is likely that only
a minority of the current Court favor applying the test in its old
form--and
they only in certain types of cases. Before she left the Court,
Justice O'Connor, in what
she
calls a "refinement" of the second prong of the Lemon test,
would
focus on whether the action challenged causes reasonable person to
conclude
that government has endorsed either a particular religion or religion
in
general. Justice Kennedy would not find an Establishment Clause
violation--at
least in prayer cases--without evidence of at least indirect coercion
to
affirm religious beliefs. Justices Scalia, Thomas, and (and
probably Roberts and Alito)
are even less inclined to find Establishment Clause violations,
generally
limiting them to cases of direct coercion of religious affirmation.

The Ten Commandments in the U. S.
Supreme Court

Ten Commandments monument in front of the Texas
State Capitol
in Austin. Its placement was upheld by the Supreme Court.

In the 1980 decision of Stone v Graham the Court, in a 5 to
4 vote, struck down a Kentucky law that required the placement of a
copy of the Commandments in public school classrooms. In June
2005, the Supreme
Court decided two more cases, also by 5 to 4 votes, involving the
placement of the Ten
Commandments on public property. The Court upheld a challenge to
to the
placement of a framed copy of the Commandments on the walls of two
Kentucky county courthouses (McCreary
County v ACLU), but rejected a challenge to the placement of a
large stone
monument (installed by the Fraternal Order of Eagles) in front of the
Texas Capitol (Van Orden v Perry). In the Kentucky cases, the
Court found the placement of the Ten Commandments was motivated by the
religious purpose of promoting religion, while in the Texas case the
Court concluded that the monument, placed by a private organization on
the state grounds some forty years earlier and surrounded by other
monuments, had--in its context--the primarily secular purpose of
reminding viewers of the role religion played in shaping national
values.

Justice Breyer, in his concurring opinion, provide the
key fifth vote to allow the monument to remain on the public
grounds. He said cases such as this require a nuanced examination
of facts to determine whether the display has effects inconsistent with
the values expressed in the First Amendment's two religion clauses.

In 2010, the Supreme Court
overturned a lower court's injunction that prevented the federal
government from implementing a land transfer statute that would
exchange a piece of land in the Mojave Preserve, federal land, for a
piece of private land of roughly equal value. The piece of public
land to be exchanged for private land contained a controversial Latin
cross (see picture above) that had been placed in the Preserve over 70
years ago by the VFW as a way of honoring the nation's war dead.
The lower court viewed the proposed land transfer, clearly designed to
defeat an Establishment Clause challenge to the cross, as in itself an
unconstitutional establishment of religion. The Supreme Court
disagreed. Writing the Court's plurality opinion, Justice Kennedy
said the cross was not a mere "reaffirmation of Christian beliefs" but
a symbol that "evokes the thousands of small crosses in foreign fields
marking the graves of Americans who fell in battles." Four
justices dissented.

The official seal of Republic, Missouri,
challenged
by the ACLU as a violation of the Establishment Clause.

1. Lynch and Allegheny
County are both 5 to 4 decisions, but come out differently on
whether
government placement of a creche in a public space constitutes an
establishment.
The only justice to be in the majority in both cases was Justice
O'Connor.
What seems to be the key difference between the two displays for
Justice
O'Connor?2. Since 1989
when Allegheny
County was decided, three new justices have joined the Court:
Thomas,
Ginsburg, and Breyer (replacing White, Marshall, and Brennan).
With
the Court's current composition, do you agree that Allegheny County
would be likely to come out the same way today, with Thomas replacing
White
in dissent? Do the views of Ginsburg and Breyer in Capitol
Square
offer any clues as to how they would approach the case?3. Why do
Allegheny's
poinsettias not save its creche the way the talking wishing well and
plastic
reindeer did for Pawtucket? How does a judge decide what "adds
to"
and what "detracts from" a possible message of endorsement?4. If
Allegheny County's
menorah stood next to an 8-foot Christmas tree would it have withstood
constitutional challenge? Does the display (see picture at right)
suggest to you a "salute to religious liberty"? Would the salute be
clearer
if Allegheny County added a giant Buddha such as the Taliban blew up in
Afghanistan?5. Taken
together, Lynch
and Allegheny County suggest a Court obsessed with trivial
matters
such as the presence or absence of plastic animals, but can you suggest
a better line to draw?6. Should Allegheny
County come out differently if the county put a large sign
next
to the creche: "The County does not intend by this display to suggest
any
endorsement of Christianity"?7. Is a
December music
program in a public school constitutional if all the songs are
religious
and pertain to Christmas? Is the program saved by adding "Frosty
the Snowman"?8. What
message was
the KKK trying to send by displaying its cross in Capitol Square?
Do you see the case as raising Establishment Clause issues? 9. Analyze the
constitutionality
of the Republic, Missouri seal and the Ten Commandments plaque on the
County
Courthouse in Pittsburgh (see picture and photos above).

Question presented:Is a Utah municipal park a public forum under the
First Amendment for
erection and permanent display of monuments displayed by private
parties, and is the Summum religion entitled to an injunction that
would allow it to construct in the park a religious monument containing
the Seven
Aphorisms of Summum and that would be similar in size,
material, and appearance to an existing Ten Commandments monument
donated by the Fraternal Order of Eagles to the city several decades
ago?

A sampler
of
questions from the oral argument:Roberts:
"You have a Statue of Liberty. Do we have to have a Statue of
Despotism? Or do we have put any president who wants to be on
Mount Rushmore?"Souter: Does
allowing someone to put a John McCain sign on your front lawn suggest
that you support his candidacy?Stevens: Would it
be all right for the government to exclude the names of gay soldiers
from the Viet Nam Memorial?Scalia: What
if a group wanted to put in the park "a monument to chocolate chip
cookies"?

Decision:The Supreme Court, with Justice Alito writing for the
Court, found that monuments accepted by the city for display in its
park were government speech and therefore not subject to a First
Amendment analysis. Pleasant Grove is free to accept or reject
private monuments, at least insofar as its acceptance of a monument
cannot be seen to be an endorsement of
religion.

The Court, on a 5 to 4 vote, held that the
placement in front of the Texas State Capitol of a large stone monument
engraved with the Ten Commandments did not constitute an "establishment
of religion." The Court noted that the monument, placed among a
number of other monuments that did not have religious messages, had a
primarily secular purpose of reminding people of the role religion
played in shaping our national history. The Court distinguished
the Texas monument from a framed listing of the Ten Commandments in a
county courthouse which the Court, on the same day and also by a 5 to 4
vote, said did constitute an
establishment clause violation. Justice Breyer was the swing vote
in the two cases.